The Fight Over Unions Enters the Home

Home , David Rolf, Filibuster (military)

SOMEBODY’S KNOCKING, SHOULD I LET THEM IN?: THE FIGHT OVER UNIONS ENTERS THE HOME

Brendan Williams*†

INTRODUCTION...... 351 I. WASHINGTON STATE: BATTLEGROUND OVER UNION REPRESENTATION ...... 356 II. JANUS IMPLICATIONS FOR HOME CARE NATIONALLY...... 363

INTRODUCTION

Nationally, according to a2018 reportfrom the Paraprofessional Healthcare Institute, there are over 2 millionhome-care workers making a median hourly wage of $11.03 an hour.1 Due to these low wages, depressed by low Medicaid reimbursement where government is thepayer, “[o]ne in four home-care workers lives below the federal poverty line (FPL) and over halfrely on some form of public assistance.”2 Roughly 90% of home-care workers are womenandonly40% are white—immigrants account for nearly30%oftheoverall workforce.3 This workforce is growing as our society ages. As Soo Oh reported in Vox, “The Bureau of Labor Statistics projects an increase of more than 1 millionnew direct care workers—personal care workers, home health aides, and nursing assistants—between 2014 and 2024.”4 The report also notes

* Attorney Brendan Williams is a nationally publishedwriter on health care and civil rights issues. M.A., Washington State University; J.D., University of WashingtonSchoolofLaw. † The author acknowledges his son, Blake, whogiveshim hope in uncertain times. 1. U.S. Home Care Workers: Key Facts,PARAPROFESSIONAL HEALTH INST. 2 (2018), https://phinational.org/resource/u-s-home-care-workers-key-facts-2018/ (last visited Dec. 4, 2018). 2. Id. 3. See id. at 3(listing 2016 demographic statistics for home-care workers where 15% are “U.S. Citizens by Naturalization” and 13% are “Not a Citizen of the U.S.” to account for thenearly30% of immigrants in the overall workforce). Home-care workers, once known as “domestics,” were excluded from theFairLabor Standards Act of 1938. Ariela M. Migdall, Home Health Care Workers Aren’t Guaranteed Minimum Wage or Overtime, and theLegacyofSlaveryIsthe Reason Why, HUFFINGTON POST (May 6, 2015), https://www.huffingtonpost.com/ariela-m-migdal/home-health-care- workers_b_7224080.html. They were only included by Obama Administration rulemaking. Michelle Chen, Home-Care Workers Are Now ProtectedbyMinimum-wage Laws, NATION (July 1, 2016), https://www.thenation.com/article/homecare-workers-are-now-protected-by-minimum-wage-laws/. But that legacy of legal marginalizationpersists. 4. Soo Oh, The Future of Work is the Low-wage Health Care Job,VOX (July 3, 2017), https://www.vox.com/2017/7/3/15872260/health-direct-care-jobs. 352 Vermont Law Review [Vol. 43:351 that “the poor are essentially taking care of thepoor.”5 These marginalized workers have been receptive to unionization in many states.6 In 2014, the U.S. Supreme Court decided Harris v. Quinn.7 The Court, in a 5–4decision, ruled that Illinois personal assistants providing long-term care in homes had a right to completely opt out of representationbythe Service Employees International Union (SEIU).8 In Harris,the Court expressed strong reservations about the1977 precedent of Abood v. Detroit Board of Education,9 “which held that state employees whochoosenotto join apublic-sector union maynevertheless be compelled to pay an agency fee to support union work that is related to thecollective-bargaining process.”10 Yetthe Court fell short of overturning Abood, distinguishing it by stating, “[t]he Illinois Legislature has taken pains to specify that personal assistants are public employeesforone purposeonly: collectivebargaining. For all other purposes, Illinoisregards thepersonal assistantsasprivate sector employees.”11 The Court declined to extend Abood, writing, “[i]f respondents’ and the dissent’s views were adopted, ahost of workers who receive paymentsfrom agovernmental entity for some sort of service would be candidates for inclusion within Abood’s reach.”12 Farfrom questioning theefficacy of union representation, the majority opinion, authoredbyJustice Alito, appearedconcernedthat it would be successful:

In this case, for example, thecategoryofunionspeech that is germane to collectivebargainingunquestionably includes speech in favorofincreased wages and benefits for personal assistants. Increased wages and benefits for personal assistants would almost certainly mean increased expenditures under the Medicaid program, and it is impossible to argue that the level of Medicaid funding (or, for that matter, state spending for employee benefits in general)isnot a matter of great public concern.13

5. Id. 6. See, e.g., id. (notingsuccessfulattempts to unionize in Washington). 7. Harris v. Quinn, 134 S. Ct. 2620, 2620 (2014). 8.Id.at 2623. 9. Abood v. Detroit Bd.ofEduc., 431 U.S. 209, 211 (1977). 10. Harris, 134 S. Ct. at 2627 (citations omitted). 11.Id.at 2634. 12.Id. at 2638. 13.Id. at 2642–43. 2018] Somebody's Knocking, Should I Let Them In? 353

The Court held that “[t]he First Amendment prohibits thecollectionof an agency fee from personal assistants in the RehabilitationProgramwho do not want to join or supporttheunion.”14 Writing for the four dissenters, Justice Kagan wrote that Abood should control.15 She also noted, “[b]ecause of that bargaining, as the majority acknowledges, home-care assistants have nearly doubled their wages in less than 10 years, obtained state-funded health insurance, and benefited from better trainingandworkplace safety measures.”16 In 2018, the U.S. Supreme Court, in Janus vs. American Federationof State, County, &Municipal Employees (AFSCME),17 built on Harris and overturned the41-year-old Abood precedent.18 Like Harris, Justice Alito authored the 5–4 decision in Janus.19 Theplaintiff, Mark Janus, worked for the Illinois Department of Healthcare and Family Services as a child support specialist.20 Janus objected to union representation, in part, because it was too successfulinraising pay despite “the current fiscal crises in Illinois”21—a self-sacrificing, even noble, position somewhat beliedbythe fact that after thedecision Janus quit his job and joined aconservative policygroupas a “senior fellow.”22 Thegroupwas among what the New York Times described as “a WebofConservative Donors” that bankrolled thecase.23 In response to theargumentthat to fail to pay dues to theunion would result in “free riders” enjoying thebenefits of its advocacy, Justice Alito wrote that Janus “strenuously objects to this free-rider label. He argues that

14.Id. at 2644. 15. Id. at 2645 (Kagan, J., dissenting). 16.Id. at 2648. 17.Janus v. Am. Fed’n State, Cty., &Mun. Emps., 138 S. Ct. 2448, 2459 (2018). 18. Id. at 2460. 19. Id.; One wondershowthe25Senatorsofthe Democratic Caucus whorefusedto support a filibuster of Alito now feel. Senate Roll Call on Alito Filibuster, N.Y. TIMES (Jan. 30, 2006), https://www.nytimes.com/2006/01/30/politics/politicsspecial1/senate-roll-call-on-alito-filibuster.html. 20. Janus, 138 S. Ct. at 2461. 21. Id. To be sure, Illinois is afiscal basket case. See, e.g., Editorial, Tell it Straight, Bruce and J.B., About the Pain Ahead forIllinois,CHICAGO SUN-TIMES (June 5, 2018), https://chicago.suntimes.com/opinion/illinois-budget-rauner-pritzker-gubernatorial-election/ (“The state’s backlog of bills stands at $6.6 billion andthenewbudgetdoes littletoaddressthatproblem. And the state’s massive pension debt—more than $130 billion in unfunded liabilities—just keeps growing.”). 22. Rick Pearson, State EmployeeinMajor Union-undermining Supreme Court Case Will Join ConservativeThink Tank, Tour the Country,CHICAGO TRIB.(July 22, 2018), http://www.chicagotribune.com/news/local/politics/ct-met-janus-afscme-illinois-policy-institute- 20180722-story.html. 23. Noam Scheiber &Kenneth P. Vogel, Behind a Key Anti-labor Case, a Webof Conservative Donors, N.Y. TIMES (Feb. 25, 2018), https://www.nytimes.com/2018/02/25/ business/economy/labor-court-conservatives.html. 354 Vermont Law Review [Vol. 43:351 he is not a free rider on abusheaded for adestination that he wishes to reach butismore likeaperson shanghaied for an unwanted voyage.”24 Again, Alito appeared to argue that publicsector unions had been too successful, complaining that “ascendance of public-sector unions hasbeen marked by a parallel increase in public spending.”25 He further complained of “the considerable windfallthat unions have received under Abood for the past 41 years. It is hard to estimate how many billions of dollars have been taken from nonmembers and transferred to public-sector unions in violation of theFirst Amendment. Those unconstitutional exactions cannot be allowed to continue indefinitely.”26 Furthermore,the majority decision requires government workers to opt into union membership: “Neither an agency feenor any other payment to theunionmaybedeductedfrom anonmember’s wages, nor mayanyother attempt be made to collect such apayment, unless theemployee affirmatively consents to pay.”27 In dissent, Justice Kagan accused the majority of “weaponizing the First Amendment,ina way that unleashes judges, now and in the future,to intervene in economic and regulatory policy.”28 Of Abood, she wrote: “More than 20 States have statutory schemes built on thedecision. Those laws underpin thousands of ongoing contracts involving millions of employees. Reliance interests do not comeany stronger than those surrounding Abood. And likewise, judicial disruptiondoesnotget any greater than what the Court does today.”29 Indeed, thedisruption cannot be overstated. As Alana Semuels wrote in The Atlantic, “[u]ntil now, 22 states had in place a so-called ‘fair share’ provision, which required people representedbyunions whodidnotchoose to be members of theseunions to pay fees to cover thecost of theunions’ collectivebargainingactivities.”30 There mayalso be interesting collateral effects, as Washington Post columnist Dana Milbank wrote in anticipationofthedecision: “Among the

24. Janus, 138 S. Ct. at 2466. 25.Id. at 2486. Justice Alito complainsof“[u]nsustainablecollective-bargaining agreements.” Id. Could it not be argued that the remedyiseithertonot enter into such agreements in thefirstplace,or to sustain them through additional revenue, as opposed to weakening theability of unions to bargain? 26.Id. The use of the term “windfall” conjures the image of union leaderssitting, like Scrooge McDuck, upon piles of gold, when, in fact, have not theduesresulted—as Alito complains elsewhere— in improved compensationforthosepaying them? 27. Id. 28.Id. at 2501 (Kagan, J., dissenting). 29.Id. at 2487–88. 30. Alana Semuels, Is This the End of Public-sector UnionsinAmerica?,ATLANTIC (June 27, 2018), https://www.theatlantic.com/politics/archive/2018/06/janus-afscme-public-sector- unions/563879/. 2018] Somebody's Knocking, Should I Let Them In? 355 other things that might be challenged if government-imposedpayments becomeunconstitutional‘compelled speech’: bar dues, student-association fees, utility bills, auto-insurancepremiums, continuing-education requirementsfordoctors and other professionals, homeowners association dues,training for school-bus drivers and others, vaccinations, attorney- supervised real estate closings.”31 In California, for example, theeffects of Janus were immediate, as the Sacramento Bee reported:

The State Controller’s Office said on Wednesday that it would cease deducting fair share fees from thepaychecks of state workers whoarenotfull union members. Employees will notice thechangein their paychecks for their work in July, with many of them saving about $1,000 a year that they had paid in labor fees.32

In a celebratory Tweet—of course—President Trump exulted: “Big loss for thecoffers of the Democrats!”33 He mayberight. The fight will now be to persuade public sector workers to join, or not join, unions. As the New York Times noted, even before the Janus decision, theconservative Bradley Foundation“substantially increased its contributions, totaling well over $1 million, to groups like the Independence Institute of Colorado and theFreedom FoundationofWashington State. Thosegroups have used such tools as direct mail, phone calls and door knocking to persuade public-sector workers to give up union membership.”34 This Article examines the implications of Janus by first focusing on the state of Washington, where the fight between SEIU and those wishing to reduce its membership has been fierceeversince the Harris decision. The Article then extrapolates based on that example.

31. Dana Milbank, The Kochs AreTryingto Kill Unions. Be Careful What You Wish For., WASH. POST (Feb. 26, 2018), https://www.washingtonpost.com/opinions/the-kochs-are-trying-to-kill- unions-be-careful-what-you-wish-for/2018/02/26/ce810844-1b45-11e8-9de1- 147dd2df3829_story.html?utm_term=.fe732fee7fb0. 32. Adam Ashton, Court Case Will Cost California Unions Big Money Immediately. Then the Real Fight Begins.,SACRAMENTO BEE (June 28, 2018), https://www.sacbee.com/news/politics- government/the-state-worker/article213953319.html. 33. KaitlynSchallhorn, Supreme Court Ruling in Janus Union Case Sparks Reactions From Trump, Other Lawmakers,FOX NEWS (June 27, 2018), http://www.foxnews.com/politics/2018/06/27/supreme-court-ruling-in-janus-union-case-sparks- reactions-from-trump-other-lawmakers.html. 34. Scheiber & Vogel, supra note 23. 356 Vermont Law Review [Vol. 43:351

I. WASHINGTON STATE: BATTLEGROUND OVER UNION REPRESENTATION

In Washington, home-care workers, also known asindividual providers (IPs), gained the right to collectively bargain with the state through the 2001 passageofInitiative775.35 Or as theconservative Freedom Foundation—which fought theSEIU––morecynically recounts it: “In 2001,theServiceEmployeesInternational Union (SEIU) successfully backed Initiative775,whichopened the door for SEIU to unionize IPs. In a little-publicized, low-turnout election, SEIU Local 775 was certified to act as the monopoly provider of workplace representation for allindividual providers with only 6,575 votes.”36 In 2001, theplight of Washington’sIPs was objectively difficult.37 Their wages were not bargained for or based upon empirical criteria, but simply arbitrarily set in the state budget. Thebudget that passed in 2001 raised their wages to $7.68 per hour, from $7.18.38 In 2002, the Democratic Governor, Gary Locke, actually vetoed a wage increase.39 Today SEIU Local 775, under the longtime leadership of its president David Rolf, has grown to be a powerful force in statepolitics; representing 45,000 long-term care workers in Washington and Montana.40 SEIU is pushing for a$15minimum wage and other progressive policies.41 Under

35. 2002 Wash. Sess. Laws 10. 36. David Dewhirst &Maxford Nelsen, SEIU’s Dues Collection fromHome-care Workers is Illegal,EVERETT HERALD (Jan. 15, 2016), https://www.heraldnet.com/opinion/seius-dues-collection- from-home-care-workers-is-illegal/. 37. See S. 6153, § 206, 57th Leg., 2d Spec. Sess. (Wash. 2001) (appropriatingfundsfor individual home-care providers’ wagesinthestate of Washington for2001). 38. Id. 39. See S. 6387, § 206, 57th Leg., Reg. Sess. (Wash. 2001) (strikingawage increase for individual providers). 40. Podcast: Seattle Labor Leader David Rolfonthe Demise of Unions, and How They Can Evolve,SEATTLE TIMES (Feb. 16, 2018), https://www.seattletimes.com/seattle-news/politics/podcast- seattle-labor-leader-david-rolf-on-the-demise-of-unions-and-how-they-can-evolve/. 41. See, e.g., id. (discussingunionspost-Janus case). The New York Times had written that “Mr. Rolf is at the forefront of the shift in the labor movement—from a focus on organizing workers in manufacturingandcrafts to those in theservicesector,particularly low-income and womenofcolor.” AlinaTugend,Leading the Wayinthe FightforHuman Rights, N.Y. TIMES (May 24, 2018), https://www.nytimes.com/2018/05/24/us/leading-the-way-in-the-fight-for-human-rights.html.In September2018, it wasannouncedthat Rolf would be stepping away due to a term limit. See Jim Brunner & Benjamin Romano, David Rolf, Powerful Labor Leader, Handing Off Reins at Seattle-based SEIU 775,SEATTLE TIMES (Sept. 6, 2018). See Jim Brunner &Benjamin Romano, David Rolf, powerful labor leader, handing offreinsat Seattle-based SEIU 775,SEATTLE TIMES (Sept. 6, 2018), https://www.seattletimes.com/business/david-rolf-powerful-washington-labor-leader-handing-off-reins- at-seiu-775/ (“Rolf, a power player in Seattle and state politics, reached the15-yeartermlimitinthe union’s constitution andcouldnotstand for re-election.”). The Freedom Foundation exulted: 2018] Somebody's Knocking, Should I Let Them In? 357 thecurrent union contract, each home care worker will make no less than $15 an hour by January 1, 2019, and workers today receive health care, workers’ compensation, retirement, and other benefits.42 They also have the nation’s highest training standards.43 The Freedom Foundation is described as “a group tied to Republican billionaires long opposed to organized labor and its support of the Democratic Party.”44 Its objectives are clear. As one articledescribed, “Freedom Foundation CEO Tom McCabe authoredafundraising letter touting its ‘proven plan for bankruptingand defeatinggovernment unions’ and addressing ‘a broken political culture’ fueled by union dues.”45 Like Rolf, McCabe is a formidablepolitical force, credited with killing homeowners’ rights legislationdueto hisfriendship with the state’s longtime Democratic House Speaker—all while head of Washington’s homebuilding lobby.46

The union’s national leadership, whichconsideredRolf one of its rising stars justafewmonths ago, couldn’t have been pleased that the Freedom Foundation emerged as perhaps the most prominent policyorganization in thenation in the fight to see Janus decided — despite the best efforts of Rolf and hishenchmentodestroyus first.

Jeff Rhodes, 6,000 Workers Freed, Rolf Ousted: SEIU 775’s Legacy of Failure Continues.,FREEDOM FOUND.(Sept. 13, 2018), https://www.freedomfoundation.com/labor/6000-workers-freed-rolf-ousted- seiu-775s-legacy-of-failure-continues/. 42. See, e.g.,COLLECTIVE BARGAINING AGREEMENT BETWEEN THE STATE OF WASHINGTON & SEIU 775, at 15, 16, 29, 33, A-4(2017), http://seiu775.org/files/2017/09/Homecare17_19WebReady- signature-page-w-mou.pdf (stating union employees rights and benefits).The SEIU Benefits Grouphas also taken innovativeapproachesto addressing theanxietyanddepressionthat comes with caregiving. See Sara Schilling, They Care for Your Relatives When YouCan’t. This Program’s Trying to Save Them,TRI-CITY HERALD (May 26, 2018), https://www.tri-cityherald.com/news/ local/article211089364.html (discussing themindfulness program set by theSEIUBenefits Group). 43. Oh, supra note 4. 44. Josh Eidleson, Backed by Court Ruling, Freedom Foundation to Launch Assault on West Coast Public-Sector Unions,NEWS TRIB.(June 29, 2018), https://www.thenewstribune.com/news/local/article214027639.html. The Freedom Foundation is so conservative that it does not even celebrate Labor Day. See Press Release, Freedom Foundation, Freedom Foundation Again Marks Right to Work Day Instead of Labor Day (Aug. 30, 2018) (“For the fifth year in arow, employees of the Freedom Foundationhavevolunteeredto work on the traditional Monday Labor Day holiday and instead take adayoffthepreviousFriday to observe whatthey’ve dubbed Right to Work Day.”), https://www.freedomfoundation.com/labor/freedom-foundation-again- marks-right-to-work-day-instead-of-labor-day/. 45. Eidelson, supra note 44. 46. See, e.g., Editorial, Home Warranty: A Simple Matter,SEATTLE POST-INTELLIGENCER (Mar. 11, 2008), https://www.seattlepi.com/local/opinion/article/Home-Warranty-A-simple-matter- 1266908.php (discussing Democratic House Speaker Chopp killingahomeowner’sprotection). McCabe received the2011RonaldReaganAward from the Conservative Political Action Conference. See Brad Shannon, Tom McCabe Wins National Ronald Reagan Award,OLYMPIAN (Feb. 14, 2011), 358 Vermont Law Review [Vol. 43:351

The Freedom Foundationandthe SEIU have been locked in conflict since Harris, and there is no reason to suppose theconflict will diminish after Janus. Indeed, after the Janus ruling, the Freedom Foundation filed suit in federal court seeking class-action status on behalf of IPs whodidnot want to pay dues to the SEIU.47 In a Washington Examiner column encouraging the result in Janus, Maxford Nelsen, of the Freedom Foundation, contended that the SEIU in Washington had “tarnished dissenters within theirranks, and runpersonal attack campaigns targeting thehomesof Freedom Foundation leadersfor simply trying to ensure workers understand theirrights.”48 He previously maintained in an Examiner column that unions “siphon off Medicaid funds meant for society’s most vulnerable” and that, “[b]eyond periodically negotiatingcaregivers’ reimbursement rate with the state, theunions provide little in return.”49 Expressing theconservative viewpoint, Akash Chougule, with AmericansforProsperity, wrote in Forbes that “union members often flee when given thechance”andlauded theeffortsof the Freedom Foundation relative to “public-sector child-care providers. Between 2014 and 2015, over 3,000 union members—more than half thebargainingunit—withdrew from theunion.”50 SEIULocal 775 went to greatlengths to thwart the Freedom Foundation’s efforts. As one conservativecritic, Red Jahnke, claimed in the National Review:

SEIU 775 tightened resignation rules to lock in those who might become aware of their Harris rights. Amember could resign, and anon-member could opt out, only by giving writtennotice to both theunionandthe state within 15 days

https://www.theolympian.com/news/politics-government/article25284622.html (discussing McCabe’s leadership and lobbying positions). 47. Lawsuit Seeks ReimbursementforHome Care Worker Union Dues,SEATTLE TIMES: ASSOCIATED PRESS (July 3, 2018), https://www.seattletimes.com/seattle-news/apxlawsuit-seeks- reimbursement-for-home-care-worker-union-dues/. 48. Maxford Nelsen, Neil Gorsuch Can Give Workers Win Over Unions at theSupremeCourt If We Fight forIt,WASH. EXAMINER (Sept. 28, 2017), https://www.washingtonexaminer.com/neil- gorsuch-can-give-workers-a-win-over-unions-at-the-supreme-court-if-we-fight-for-it. 49. Maxford Nelsen, Unions are Siphoning Medicaid Funds by Bullying Caregivers,WASH. EXAMINER (May 10, 2017), https://www.washingtonexaminer.com/unions-are-siphoning-medicaid- funds-by-bullying-caregivers. 50. Akash Chougule, Unions Stifle Worker Freedom,FORBES (Aug. 18, 2016), https://www.washingtonexaminer.com/unions-are-siphoning-medicaid-funds-by-bullying-caregivers. 2018] Somebody's Knocking, Should I Let Them In? 359

after his anniversary date of joining theunion. Behold SEIU’s Hotel California rules.51

He stated, “SEIU 775’s machinations proved remarkably successful. Two years after Harris, it retained 94 percent of its membership, according to data the Freedom Foundationobtainedfrom the state.”52 In 2016, Washington voters had before them theunion-backed Initiative1501, magnificently-titled“Seniors and Vulnerable Individuals’ Safety and Financial Crimes Prevention Act”53 that—among other things— would keep caregivers’ information from organizations like the Freedom Foundation.54 ATacoma News Tribune articlenoted, “[e]ven theopponents of Initiative1501agree the measure, on its face, sounds innocuous.”55 According to thearticle, “[t]he Washington State Senior Citizens’ Lobby supports the initiative. Walt Bowen, thegroup’s president, saiddeterring identity thieves with stiff penalties is important, as is protecting the informationofseniors and their caregiversfrom people who might abuse it.”56 In contrast, thepresident of the Washington Coalition for Open Government opposed the measure, sayingheis “concerned I-1501 sets a dangerous precedent by allowing a special-interest group to ‘stealthily create anewexemption in thePublic Records Act’ via a citizen initiative.”57 The Seattle Times, whicheditorially leansright on union issues,58 and is ardent on public disclosure,59 editorialized in opposition: “I-1501 is a

51. Red Jahnke, SCOTUS Halts Unions’ ‘Hotel California’ Rules,NAT’L REV. (July 8, 2018), https://www.nationalreview.com/2018/07/supreme-court-ruling-janus-case-no-more-opt-out-rules-for- unions/. 52. Id. 53. Seniors &Vulnerable Individuals’ Safety &Financial Crimes Prevention Act, 2017 Wash. Sess. Laws 23. 54. Id. 55. Melissa Santos, Would Initiative 1501 Protectthe Elderly, a Powerful Union—or Both?, NEWS TRIB.(Oct. 19, 2016), https://www.thenewstribune.com/news/politics- government/election/article109187922.html. 56. Id. 57. Id. 58. See, e.g., Editorial, Initiative 1163: Leadership Means Having theCourageto Say We Can’t Afford It,SEATTLE TIMES (Oct. 25, 2011), https://www.seattletimes.com/opinion/initiative-1163- leadership-means-having-the-courage-to-say-we-cant-afford-it/ (opposing higher trainingstandardsfor home-care workers). I–1163 passed with 65% of the vote statewide. See November 8, 2011 General ElectionResults: Initiative Measure No. 1163, Concerning Long-term Care Workers and Services for Elderly and Disabled People,WASH. SEC’Y OF STATE (Dec. 6, 2011), http://results.vote.wa.gov/results/20111108/Initiative-Measure-1163-Concerning-long-term-care- 360 Vermont Law Review [Vol. 43:351

Trojan horse. It’s being runbyadeep-pocketed special-interest group that wants to weaken thestate Public Records Act, reducing thepeople’s access to government records.”60 The editorial stated that “[b]ecause these care providers are public employees, basic contactinformation is available upon request. This is an inescapable facet of public service: In an open government, thepublic gets to knowwho is receiving its taxdollars.”61 But, as an article in theSpokane Spokesman-Review noted,theunion alleged “members are being harassedbyFreedomFoundation representatives who show up at homes, send mail and emails, and call.”62 In a Times article, Rolf was quoted saying, “I don’tthink that because you choose to be a caregiver, that you should become subjecttoendless harassment by anti-union ideologues.”63 Conservatives took a different view. After Harris, a National Review writer complained:

The Freedom Foundationeffortlessly obtained SEIU 925’s membership list through thePublic Record Act and notified members of theirrights. Theunionshrunk nearly 60 percent. In thecourts,Washington’s other SEIU chapter, SEIU 775, challenged the Freedom Foundation’s use of public records, and the Freedom Foundationprevailed. The state supreme court refused to hear theunion’s appeal. In theaftermath of its legal loss, SEIU has donated $1.6 million to fund I-1501 public advocacy in a final attempttoprevent the think tank from obtaining its membership list.64

workers-and-services-for-elderly-and-disabled-people.html (modifying the law governing background checks, training, and home-care-aide certificationforlong-term care workers). I-1163 wascodifiedin 2012. See 2012 Wash. Sess. Laws ch. 1. 59. See, e.g., Opinion, Gov. Inslee, Veto Anti-transparency BillinFull,SEATTLE TIMES (Mar. 1, 2018), https://www.seattletimes.com/opinion/editorials/gov-inslee-veto-anti-transparency-bill-in-full/ (urginggovernorto prevent legislators from hiding records). 60. Editorial, Reject I-1501 and Urge Lawmakers to Address Identity Theft,SEATTLE TIMES (Oct. 4, 2016), https://www.seattletimes.com/opinion/editorials/reject-i-1501-and-urge-lawmakers-to- address-identity-theft/. 61. Id. 62. Erica Curless, True Aim of Initiative 1501 Tangled in Political Brawl,SPOKESMAN- REVIEW (Oct. 16, 2016), http://www.spokesman.com/stories/2016/oct/16/true-aim-of-initiative-1501- tangled-in-political-b/. 63. Jim Brunner, Behind Washington I-1501 Lies Union’s Feud with Conservative Think Tank, SEATTLE TIMES (Oct. 26, 2016), https://www.seattletimes.com/seattle-news/politics/behind-washington- 1-501-lies-unions-feud-with-conservative-think-tank/. 64. Austin Yack, In Washington State, Unions Advance a Ballot Measure to Keep Members in the Dark,NAT’L REV.(Oct. 24, 2016), https://www.nationalreview.com/2016/10/service-employees- international-union-ballot-initiative-1501-freedom-foundation-public-records-act/. 2018] Somebody's Knocking, Should I Let Them In? 361

The initiativepassedwith 70.6% of thevote.65 Among other things,the initiativeprovides:

(1) Sensitivepersonal informationofvulnerableindividuals and sensitivepersonal informationofin-home caregivers for vulnerable populations is exempt from inspectionandcopying under this chapter.

(2) The following definitions apply to this section:

(a) “In-home caregivers for vulnerable populations” means: (i)Individual providers as defined in RCW 74.39A.240, (ii) home care aidesasdefined in RCW 18.88B.010, and (iii) family childcare providers as defined in RCW 41.56.030.

(b) “Sensitivepersonal information” means names, addresses, GPS [global positioning system] coordinates, telephone numbers, email addresses, social security numbers, driver’s license numbers, or other personally identifying information.

65. November 8, 2016 General ElectionResults: Initiative Measure No. 1501 Concerns Seniors and Vulnerable Individuals,WASH. SEC’Y OF STATE, http://results.vote.wa.gov/results/20161108/State-Measures-Initiative-Measure-No-1501-concerns- seniors-and-vulnerable-individuals.html (last visited Dec. 4, 2018).I-1501 wascodifiedin2017. 2017 Wash. Sess. Laws 23–24. Days before the election, Washington’s Democratic Attorney General sued theFreedomFoundationfornotdisclosing its work against the initiative. See Press Release, Washington State Office of the Attorney General, AG Files Campaign Finance Complaint Against Freedom Foundation (Oct. 28, 2016), https://www.atg.wa.gov/news/news-releases/ag-files-campaign-finance- complaint-against-freedom-foundation-0(discussing that the Attorney General of Washington is suing theFreedomFoundationfor failing to file reportsinconjunction with an election). However, the Attorney General has also sued SEIU Local 775 in response to a 2015 campaign finances complaint from theFreedomFoundation; See Press Release, Washington State Office of the Attorney General, AG Files Campaign Finance Complaint Against SEIU 775(Oct. 28, 2016), https://www.atg.wa.gov/news/news-releases/ag-files-campaign-finance-complaint-against-seiu-775 (announcing that the Attorney General filedacomplaintagainst SEIU 775). In2017,theFreedom Foundationhasfiledfederalsuit to try to block I-1501. See Complaint, Boardmanv.Inslee, No. 3:1-cv- 05255 (W.D. Wash. Apr. 5, 2017) (seeking to enjoin and declare I-1501 unconstitutional). 66. WASH. REV. CODE §42.56.640(2018). A similar law passed in Oregon in response to the Freedom Foundation: “After a 2014 Supreme Court opinion allowed those workers to opt out of paying union dues,thefoundation sought that information so that it could send mailers to those workers. The state delayed the request until the Legislature passed a law exempting the informationfrompublic 362 Vermont Law Review [Vol. 43:351

Nor was I-1501 theendofthe fight. In February 2018,the Seattle Times editorialized, “Washingtonians are paying a heavy price for an ideological war between theconservative Freedom Foundation and a powerful union representing in-home care providers.”67 The editorial board opposed Senate Bill 6199, which they characterized as “outsourcing employment of roughly 34,000 individual care providers to aprivate vendor” as a means of shielding from public disclosure the identities of those workers.68 In protest of SB 6199, all House Republicans walked off the floor during the vote—being marked as absent—resulting in an uncommon50-0 passage in the98-member House.69 Thebill passed into law.70 Under the new law, the state “shall endeavor to select and contract with oneconsumer directed employer to be a medicaid providerthat will coemploy individual providers. Thedepartment shall make every effort to select a single qualifiedvendor.”71 As a Times article noted, “private status would allow SEIU 775 to create a shop where home-care workers must pay either uniondues or agency fees if they don’t claim religious exemptions.”72 Private status would also seem to circumvent Janus, which relates to government employment.

release.” Mike McInally, Editorial, Brown’s Move on Records is Troubling,ALBANY HERALD- DEMOCRAT (July 2, 2018), https://democratherald.com/opinion/editorial/editorial-brown-s-move-on- records-is-troubling/article_eae1ee60-5b33-5acf-80b3-ea233cc4ea13.html. Under that 2015 Oregon law: A public body that is the custodian of or is otherwise in possession of information that wassubmitted to thepublic body in confidence and is not otherwise required by law to be submitted, must redact all of the following information before making a disclosure described in ORS 192.355 (4): (1) Residential address and telephone numbers; (2)Personal electronic mail addresses and personal cellular telephone numbers; (3) Social Security numbersandemployer-issued identificationcardnumbers; and (4) Emergency contactinformation. OR. REV. STAT. §192.377(2017). 67. Editorial, Legislators Don’t CavetoIn-home Care Union–Reject Bill That Would Increase DSHS Costs,SEATTLE TIMES (Feb. 7, 2018), https://www.seattletimes.com/opinion/editorials/ legislators-dont-cave-to-in-home-care-union-reject-bill-that-would-increase-dshs-costs/. 68. Id. 69. Concerning theIndividualProviderEmployment Administrator Program, S. 6199, 2018 Sess. (Wash. 2018), http://apps2.leg.wa.gov/billsummary?BillNumber=6199&Year=2017& BillyNumber=6199&Year2017. 70. 2018 Wash. Sess. Laws 1784–85 (2018). 71.Id.at 1755. 72.Inslee Sides with Unions in Showdown over Washington’s Home Health Workers,SEATTLE TIMES (Mar. 28, 2018), https://www.seattletimes.com/seattle-news/inslee-signs-controversial-union- bill/. 2018] Somebody's Knocking, Should I Let Them In? 363

II. JANUS IMPLICATIONS FOR HOME CARE NATIONALLY

As theclashbetween theFreedomFoundationand SEIU Local 775 in Washington suggests, the stakes will be high in otherstates with active unions for home-care workers.73 And the Freedom Foundation will be a key player.74 Maxford Nelsen, for example, hasauthored a 114-page report aimedatthose states that seek to quantify and criticize “dues-skimming.”75 According to his analysis, “[a]lltold,states have deducted more than $1.4 billion in unionduesand fees from caregivers’ wages from 2000-17.”76 This will become more challenging under a rule proposed in July 2018 by the Trump Administration that would “remove the regulatory text that allows a state to make payments to third parties on behalf of an individual providerforbenefits such as health insurance, skills training, and other benefits customary for employees.”77 Thisrulemaking would rescind a 2014 Obama Administration regulation that allowed state governments to facilitate dues collection fromMedicaid providers, a regulation that the Trump Administrationnowargues: “grants permissions that Congress has foreclosed.”78 In its regulatory analysis, the U.S. Department of Health & HumanServices concedes it “lacks information to reliably estimate the

73. See Tom McCabe, Another View—Tom McCabe:Timeis Now for Organized Labor Reforms in New Hampshire,UNION LEADER (Jan. 4, 2017), http://www.unionleader.com/Another- View-Tom-McCabe-Time-is-now-for-organized-labor-reforms-in-New-Hampshire-01052017 [https://web.archive.org/web/20170108141429/http://www.unionleader.com/Another-View-Tom- McCabe-Time-is-now-for-organized-labor-reforms-in-New-Hampshire-01052017] (discussing Wisconsin’s budget and collectivebargainingissues in connection with thedecline in union memberships in Washington). 74. Although itsactivitiesarelargelyconfined to the West Coast, Freedom Foundation leader Tom McCabe encouraged New Hampshire in 2017 to adopt a “right-to-work” law. Id. In asurprising development, New Hampshire’s Republican House rejected this priority of the state’s Republican governor and Senate. See Dave Solomon, NH House Votes Down Right-to-work Bill,UNION LEADER (Feb. 16, 2017), http://www.unionleader.com/state-government/nh-house-votes-down-right-to-work- bill--20170216 [https://web.archive.org/web/20170713234849/http://www.unionleader.com/state- government/nh-house-votes-down-right-to-work-bill--20170216] (“The state House of Representatives defeated Senate-sponsored Right-to-Work legislation Thursday, 200–177, as 32 Republicans sided with aunitedDemocratic caucus to vote against the measure.”). 75.MAXFORD NELSEN,GETTING ORGANIZED AT HOME: WHY ALLOWING STATES TO SIPHON MEDICAID FUNDS TO UNIONS HARMS CAREGIVERS AND COMPROMISES PROGRAM INTEGRITY, FREEDOM FOUND. 4 (2018), https://www.freedomfoundation.com/wp-content/uploads/2018/07/Getting- Organized-at-Home.pdf [hereinafterGETTING ORGANIZED]. 76. See Freedom Foundation Report Exposes Scope of Unions’ Medicaid Dues Skim, FREEDOM FOUND. (July 18, 2018), https://www.freedomfoundation.com/pressrelease/freedomfoundation-report-exposes-scope-of-unions-medicaid-dues-skim/ (reporting on Medicaid dollars paid to the state as a result of unions). 77. Medicaid Program: Reassignment of Medicaid Provider Claims, 83 Fed. Reg. 32,252, 32,252 (proposed July 12, 2018) (to be codified at 42 C.F.R. pt. 447). 78.Id. at 32,253. 364 Vermont Law Review [Vol. 43:351 proportionofhomecareproviders likely to stop making payments versus those likely to continue making payments through alternative means.”79 With 80 canvassers along the West Coast, the Freedom Foundation’s reportedaim “is to shrinkunionranks in the three states by 127,000 members—and to offer an example for similar efforts targetingunions around thecountry.”80 Harris wasimperiling enough. After that ruling, as Semuels noted, the United Domestic Workers of America (UDW), representing California home-care workers, had to go door-to-door to retain membership: “Around 75,000 of 108,000 potential home-care workers in California have chosen to pay dues to the UDW.”81 That leaves quite a few outliers. Organizing home-care workers is not likeorganizingatraditional workplace, where all of the targets of organization work together.82 Rather, it is adoor-to-door effort. In many states, like Washington, it has been accomplished to date through statute or executiveorder.83 One wishes that policymakers would simply do the right thing, for the right reasons, without pressure. Yet absent cohesive representation, home- care workers are unlikely to be able to effectively lobby legislatures or maintain political action committees to improve their compensation.84 An Atlantic article noted: “Women of color are the largest demographic group within thehome-care workforce. Their vulnerability reflects a long history of exploitationofwomenofcolorworking in-home jobs, and highlights a

79. Id. at 32,254. In afootnote, the Department relies heavily upon conservative sources, including a webpage maintained by theStatePolicy Network. Id. at 32,254 n.1 (citing Dues Skimming FAQs, STATE POL’Y NETWORK, https://spn.org/dues-skimming-faqs/ (last visited Dec. 4, 2018)). That webpage is entitled “Dues Skimming FAQs”andasserts, among other things, “[u]nions mayarguethey lobby for greater benefits in the state legislature. However,they are playing politics, not negotiatingfor caregivers.” Dues Skimming FAQs, supra (emphasis added). 80. Eidleson, supra note 44. 81. Semuels, supra note 30. 82. See generally Jeanne Meister, The Death of the Office: What Happens When the Workspace is Mobile, On-Demand and All About Networking,FORBES (Nov. 6, 2013), https://www.forbes.com/sites/jeannemeister/2013/11/06/the-death-of-the-office-what-happens-when- the-workspace-is-mobile-on-demand-and-all-about-networking/#236cd5487952 (describing the changing nature of modern workplaces and emphasizing thecollaborativenaturewhile differentiating between office andremote workers). 83.InVermont, for example, an “[i]ndependent direct support provider”isrepresented by a labor union per statute. VT. STAT. ANN.tit.21, § 1631 (2018). The Freedom Foundation catalogues these examples. See generally GETTING ORGANIZED, supra note 75 (cataloguing state-specific examples). 84. See generally Samantha Liss, After Missouri Cuts Funding for the Disabled, Some Fear They MayBeForced into Nursing Homes,ST. LOUIS POST-DISPATCH (Aug. 16, 2018), https://www.stltoday.com/news/local/govt-and-politics/after-missouri-cuts-funding-for-the-disabled- some-fear-they/article_76b2dac9-76ed-5545-9689-e87650d4a3ab.html (highlighting that in Missouri $50 million wascutin2017in-home care). 2018] Somebody's Knocking, Should I Let Them In? 365 growing inequality in thehealth-care workforce, even as health coverage expands to more and more Americans.”85 Sarita Gupta and Ai-JenPooput it bluntly, “[h]istorically, care has been seen as women’s work; it was long voluntary or unpaid and thus systematically devalued.”86 They argue that “the profession’s historical associations with black womenhave led to harsher conditions and adeeper contempt.”87 Settingaside thequestionofwhether being in aunion is desirable, or consistent with one’s personal beliefs, there is littlequestion whether union representationbrings compensation successforhome-care workers in Washington and other states.88 Even Justice Alito, in Harris, acknowledged thearguments that “the unionhas been an effectiveadvocatefor personal assistants in the State ofIllinois, and we will assume that this is correct.”89 In Oregon, for example, the2015–2019contract between the state and theunionrepresentinghome-care workers currently provides hourly wages of $14.65 an hour.90In Massachusetts, the2016–2019 union contract for personal-care attendants provided they receive $15 an hour effective July 1, 2018.91 In 2018, the Connecticut General Assembly voted to increase wages for personal-care assistants—“from $13.53 to $14.75, then continue to increase in increments until reaching $16.25 on July 1, 2020. They would

85. Vann R. Newkirk, II, TheForgottenProviders,ATLANTIC (Sept. 29, 2016), https://www.theatlantic.com/politics/archive/2016/09/home-health-care-workers-wages/502016/. 86. Sarita Gupta &Ai-Jen Poo, Who Will Care for theCarers?,FOREIGN POL’Y (July 16, 2018), https://foreignpolicy.com/2018/07/16/who-will-care-for-the-carers-automation-health-care- aging-jobs/. 87.Id.; See also Brendan Williams, Stop Cheering theBudgetDeal. It’s aBlowtoLong-term Care and theSafetyNet., USA TODAY (Feb. 15, 2018), https://www.usatoday.com/story/opinion/2018/02/15/stop-cheering-budget-deal-its-ruinous-long-term- care-well-need-brendan-williams-column/337760002/ (criticizingbipartisan long-term care Medicare cuts, including $3.5 billioncutto home care, and writing“caregivers, and those they care for, do not enjoy the political cloutofdefensecontractors. No grand parade will be staged in recognition of their sacrifice. Perhaps theyaresimply easier to marginalize because of their demographics”). 88. Harris v. Quinn, 134 S. Ct. 2656, 2640 (2014). 89.Id.at 2641. 90. See COLLECTIVE BARGAINING AGREEMENT BETWEEN DEPARTMENT OF ADMINISTRATIVE SERVICES OF THE STATE OF OREGON, OREGON HOME CARE COMMISSION & SEIU LOCAL 503, at 42 (2015), https://www.oregon.gov/DHS/SENIORS-DISABILITIES/HCC/PSW-HCW/Documents/ohcc- seiu-2015-19-bargaining-agreement.pdf (discussing the terms of the Homecare Workers union contract). 91.COLLECTIVE BARGAINING AGREEMENT BETWEEN THE PERSONAL CARE ATTENDANT (PCA) QUALITY WORKFORCE COUNCIL & 1199 SEIU UNITED HEALTH CARE WORKERS EAST 9 (2016), https://www.mass.gov/files/documents/2017/08/zj/pca-fully-executed-cba-2016.docx. 366 Vermont Law Review [Vol. 43:351 become eligible for worker’s compensationcoverage, while they still lack health care and retirement benefits under thedeal.”92 In contrast,in2016, theaveragewage of a home-health aide in Texas, a right-to-work state, was $8.93 an hour.93 Texas-based Addus HomeCare Corporation, thenation’s largest agency home-care provider, does business in 25 states.94 Until recently Addus HomeCare “consistently paid its workers 50 cents to $1 an hour above minimum wage” according to an interviewwith its chief executive officer.95 In Washington, though, the SEIU Local 775 contract with Addus will require it to pay workers no less than $15.05 an hour by January 1, 2019.96 As hasbeentrue in Washington, there will be efforts to tripupthose looking to reduce union membership by contacting workers.97 After Janus, the Oregonian editorialized againstsuch an effort, stating, “Gov. Kate Brown wasted no time Wednesday morning in pledgingherunwavering fealty to thepublic - public employee unions,that is.”98 They wrote: “Brown is considering seeking new limits on what employee information canbereleased to thepublic with possible legislationaimedatthe2019 session.”99 According to theeditorial:

The move, according to a letter by her chief of staff, comes in response to two developments: A May records request by the anti-union Freedom Foundation, which wants to contact employees to tell them how to opt

92. Mark Pazniokas, General Assembly Approves Raises for Home-care Workers,CONN. MIRROR (Apr. 21, 2018), https://ctmirror.org/2018/03/21/general-assembly-approves-raises-home-care- workers/. 93. See Workforce Data Center, PARAPROFESSIONAL HEALTH INST., https://phinational.org/policy-research/workforce-data-center/#states=48(lastvisited Dec. 4, 2018) (examining wage trends). Texasregulationrequiresthat“anemployee providing primary home care, family care, or community attendant services” under Medicaid be paid “at least $8.00 per hour.” 40 TEX. ADMIN. CODE §41.505(2018). 94. Robert Holly, Addus CEO on Why Chick-fil-A Matters to In-Home Care Provides,HOME HEALTH CARE NEWS (June 5, 2018), https://homehealthcarenews.com/2018/06/addus-ceo-on-why- chick-fil-a-matters-to-in-home-care-providers/. 95. Id. 96. See 2017–2019 COLLECTIVE BARGAINING AGREEMENT BETWEEN ADDUS WASHINGTON & SEIU 775, at 36 (2017), http://seiu775.org/files/2016/12/ADDUS-WA-2017-2019-CBA.pdf (charting wage increases from 2017–2019). 97. See Opinion, Transparencyinthe Post-Janus Age,OREGONIAN (June 29, 2018), https://www.oregonlive.com/opinion/index.ssf/2018/06/transparency_in_the_post-janus.html (discussingGovernorBrown’sactionin favor of supporting unions post-Janus decision). 98. Id. 99. Id. 2018] Somebody's Knocking, Should I Let Them In? 367

out of union membership and fees; and the release to The Oregonian/OregonLive of a data set with names,job titles, salaries, demographic informationandmonth and year of birth. Neither provides a compelling reason to sacrifice transparency.100 Caught in the middle of this conflict will be those whoarecared for at home, who likely never imagined they would be infirm enough to need care, let alone that they would be the focus ofsuch political machinations. Our society is aging.101 By 2030, there will be an estimated three million more 85-and-olderresidents than there were in 2012.102 Professor Paul Osterman of the Massachusetts Institute of Technology’s Sloan School of Management conservatively estimated that by 2030 “there will be a national shortage of 151,000 paid direct care workers and 3.8 millionunpaidfamily caregivers.”103 As theprevalence of immigrants in the workforce suggests, the lowwages are not appealing to native-born Americans, making the Trump Administration immigration restrictions allthe more worrisome.104

100. Id.InCalifornia, one writer noted unions “have done as much as they can to mitigate the ruling before it arrived.” Ben Bradford, California Unions Have PreparedForJanus,CAP. PUB. RADIO (June 27, 2018), http://www.capradio.org/articles/2018/06/27/california-unions-have-prepared-for- janus/. For example, “Gov. Jerry Brown signed a law that putsnewemployeesthrough an orientation with their prospectiveunions.Provisions in a state budget bill this yearrequire unions sign-off any emails, flyers or letters that agencies mayhandoutaboutunionization, while further preventing employers from discouraging new employees from joining.” Id. The Freedom Foundation has acknowledged these efforts have curbed its success—only 160 out of 76,000 teachers emailed by the Foundation in May 2018 opted out of their unions throughaFoundation website set up for that purpose. Margot Roosevelt, Will theSupremeCourt’sJanus Decision Sink California Unions?,ORANGE COUNTY REG.(June 27, 2018), https://www.ocregister.com/2018/06/27/can-californias-public- employee-unions-thwart-u-s-supreme-courts-janus-decision/. 101. See, e.g.,JENNIFER M. ORTMAN, VICTORIA A. VELKOFF & HOWARD HOGAN, U.S. CENSUS BUREAU, U.S. DEP’TOFCOMMERCE, AN AGING NATION: THE OLDER POPULATION IN THE UNITED STATES 4(2014), https://www.census.gov/prod/2014pubs/p25-1140.pdf (describing theoverall trends of age distribution changes in the UnitedStates). 102. See, e.g., id. at 6 (showing that in 2012 there were an estimated 5,887,000 citizens over 85 years old andin2030thereareaprojected 8,946,000). 103. Mark Miller, The Future of U.S. Caregiving: High Demand, Scarce Workers,REUTERS (Aug. 3, 2017), https://www.reuters.com/article/us-column-miller-caregivers- idUSKBN1AJ1JQ?xid=PS_smithsonian. 104. See, e.g., Melissa Bailey, As Trump Targets Immigrants, Elderly and Others Brace to Lose Caregivers, WASH. POST (Mar. 24, 2018), https://www.washingtonpost.com/national/health- science/astrump-targets-immigrants-elderly-and-others-brace-to-lose-caregivers/2018/03/24/72d5a0d0- 2d3e-11e8- 8ad6-fbc50284fce8_story.html?utm_term=.01fc35983933 (describing the low volume of American citizen healthcare workers and theentire system’s reliance on immigrants); Abigail Abrams, How Trump’s ImmigrationPoliciesCould Hurt Senior Care,TIME (May 10, 2018), http://time.com/5272775/donald-trump-immigration-tps-temporary-protected-status/1 (elaborating how thehealth care sector will change forthe worse due to Trump’simmigrationpolicies). Advocates of 368 Vermont Law Review [Vol. 43:351

Since families today are smaller and more scattered, unpaid family caregiving, thebedrockoflong-term care,isnot as feasible as it once was.105 In conclusion, whether unionizationcancombat the serious challenges facing home care is now a question that will be debated home-by-home, in those states where home-care workers are unionized.

immigration restrictions ignore this reality, focusing instead on how most home-care workers are native- born: Steven Camerotaisn’tworried about a shortage in home care workers. He’s the director of research at theCenterforImmigrationStudies, whichadvocatesfor restrictions on immigration. He points out that, despite thegrowing immigrant workforce, three-quarters of the people currently providing home care were born in the U.S. There’s no mystery to whatitwould take to increase that percentage, says Camerota. “Raise wages. Treat workers better.”

InaJaffe, U.S. ImmigrationPolicyThreatensShake-Up In Home Health Business, NPR (Mar. 5, 2018), https://www.npr.org/sections/health-shots/2018/03/05/587691189/immigrants-who-staff-home- healthcare-in-the-u-s-worry-about-deportation. Camerota’s naïve prescription does not reveal what magic, hitherto unseen, would compel altruism by policymakers whohavelong neglected Medicaid funding across all of long-term care. Even President Trump’s self-styled “Southern White House” was looking for61immigrant workersin2018,despitebeingownedbyabillionaire. See William Cummings, Trump’s Mar-a-Lago AsksLabor for Permission to Hire 61 Foreign Workers, USA TODAY (July 6, 2018), https://www.usatoday.com/story/news/politics/onpolitics/2018/07/06/mar-lago-foreign- workervisas/764053002/ (describing how President Trump’sgolfclub is looking to hire 61 immigrants). 105. Clare Ansberry, America Is Running Out of Family Caregivers, Just When It Needs Them Most,WALL STREET J. (July 20, 2018), https://www.wsj.com/articles/america-is-running-out-of-family- caregivers-just-when-it-needs-them-most-1532094538.